CELESTINE KAMTAMBULA KAZIBA v REPUBLIC 1984 TLR 269 (HC)

CELESTINE KAMTAMBULA KAZIBA v REPUBLIC 1984 TLR 269 (HC)

Court High Court of Tanzania - Mtwara

Judge Msumi J

March 9, 1985

B CRIMINAL APPEAL 78 OF 1982

Flynote

Criminal Practice and Procedure - Charges - Impersonating a Public Officer contrary

to s.100 of the Penal Code - Whether conviction maintainable where accused was

originally charged under a wrong sub-section.

-Headnote

C The appellant presented himself and enrolled for a course at Mahiwa Party

Ideological College in the name of Captain C.B.E. Mziba of Tanzania Peoples' Defence

Forces. It was later discovered that D he was not an employee nor officer of the

Tanzania People's Defence Forces. He was charged and convicted of impersonating a

public officer contrary to s.100 (1) of the Penal Code. On appeal against conviction:

E Held: (i) The provisions of sub-section (1) comes into play where accused purports

to discharge duty, either by doing an act or attend in any place, which he is required

to perform in his assumed official post;

(ii) in the instant case the appellant ought to have been charged under

subsection (2) as there F wa no duty imposed on him to enroll himself with the

college as a result of his being an army captain;

(iii) in the instant case the appellant though charged under the wrong

subsection fully understood the kernel of the case against him; therefore, the

irregularity is curable under section 346 of the criminal Procedure Code in which

case the conviction is taken to have been entered under G subsection (2) of s.100.

Case Information

Appeal dismissed.

H No cases referred to.

[zJDz]Judgment

Msumi, J.: After he was convicted of impersonating Public Officer contrary to section

100(1) of the Penal Code, appellant was sentenced to two years imprisonment which

was subject to confirmation I by this court. Appellant has filed this appeal to

challenge the said conviction and sentence.

1984 TLR p270

MSUMI J

The factual aspect of the prosecution's allegation leaves no room for any rational

controversy. On A the material days appellant presented himself before the

principal of Mahiwa Party Ideological College as one Captain C.B.E. Mziba of

Tanzania People's Defence Forces. And by virtue of the purported public office,

appellant enrolled himself as a long course student of the college. It, B however,

transpired that in fact appellant was not employed as public officer let alone being a

army captain. As I said, these facts are supported by cogent evidence. Nothing has

been adduced by the appellant in his defence which has the effect of creating

reasonable doubt against this allegation. However, the same expression of satisfaction

is not maintainable when it comes to the legal aspect C of the case.

As an attempt to convey my uneasiness effectively let me quote fully the provisions of

section 100 of the Penal Code. It reads:

100. Any person who- D

(1) personates any person employed in public service on an occasion when the

later is required to do any act or a attend in any place by virtue of his employment; or

E

(2) falsely represents himself to be a person employed in the Public service,

and assumes to do any act or to attend in any place for the purpose of doing any act

by virtue of such employment, is guilty of a misdemeanour.

When admitting this appeal my brother Samatta, J., queried, inter alia, whether in

drafting the F charge the public prosecutor intended to use subsection (2) of the

section. With respect, the conviction of the appellant under subsection (1) was

clearly prompted by the misconception of these two subsections. The provisions of

subsection (1) only come into play where accused G purports to discharge duty,

either by doing an act or attend in any place, which he is required to perform in his

assumed official post. In the instant case it is true that appellant enrolled himself as

Captain Mziba but he was not required or duty - bound to enroll himself with the

college as a result of his being an army captain. There was no duty imposed on him as

such to enroll himself with the H college. He ought to have ben charged under the

provisions of subsection (2). For it is clear that appellant assumed to attend the course

by virtue of his false representation that he was an army captain. As a general

guidance, magistrates are advised that whenever they are called upon to I adjudicate

a case preferred under either of the subsections of section

1984 TLR p271

A 100 of the Penal Code, they should particularly be on guard against the common

error of mixing up these provisions. For, depending on the particular circumstances of

the case, such error may be fatal to the conviction. Quite happily, the same cannot be

said in this case. Though charged under B the wrong subsection, appellant fully

understood the kernel of the case against him. The situation is curable under section

346 of the Criminal Procedure Code. Thus the conviction is taken to have been

entered under subsection (2) of section 100.

C The sentence of two years imprisonment is the maximum provided by the law. I

don't think that it is such a bad impersonation case so as to warrant the imposition of

the maximum penalty. Appellant's youth age and the fact that he was a first offender

ought to have been taken as factors mitigating the intended sentence. Unfortunately

any reduction of this sentence at this hour will be D of no practical utility.

Appellant has already completed serving the sentence. This appeal is therefore

dismissed and the sentence of two years imprisonment is hereby confirmed.

Appeal dismissed.

1984 TLR p271

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